Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the [Bush Administration's executive detention and military commissions] bill had not yet reached a level that would cause them to try to block it altogether.

"We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. "And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution."

I'm afraid it's already too late for that, Senator Reid.

I am puzzled by and ashamed of the Democrats' moral cowardice on this bill. The latest version of the bill blesses detainee abuse and looks the other way on forms of detainee torture; it immunizes terrible acts; it abridges the writ of habeas corpus-- in the last, most egregious draft, it strips the writ for alleged enemy combatants whether proved to be so or not, whether citizens or not, and whether found in the U.S. or overseas.

This bill is simply outrageous. I doubt whether many Democratic Senators or staffs have read the bill or understand what is in it. Instead, they seem to be scrambling over themselves to vote for it out of a fear that the American public will think them weak and soft on terror.

The reason why the Democrats have not been doing very well on these issues, however, is that the public does not believe that they stand for anything other than echoing what the Republicans have been doing with a bit less conviction. If the Republicans are now the Party of Torture, the Democrats are now the Party of "Torture? Yeah, I guess so." Not exactly the moral high ground from which to seek office.

The Democrats may think that if they let this pass, they are guaranteed to pick up more seats in the House and Senate. But they will actually win less seats this way. For they will have proved to the American people that they are spineless and opportunistic-- that, when faced with a genuine choice and a genuine challenge, they can keep neither our country nor our values safe.

The current bill, if passed, will give the Executive far more dictatorial powers to detain, prosecute, judge and punish than it ever enjoyed before. Over the last 48 hours, it has been modified in a hundred different ways to increase executive power at the expense of judicial review, due process, and oversight. And what is more, the bill's most outrageous provisions on torture, definition of enemy combatants, secret procedures, and habeas stripping, are completely unnecessary to keep Americans safe. Rather, they are the work of an Executive branch that has proven itself as untrustworthy as it is greedy: always pushing the legal and constitutional envelope, always seeking more power and less accountability.

If the Democrats do not stand up to the President on this bill, if they refuse to filibuster it or even threaten to filibuster it, they do not deserve to win any additional seats in the House or in the Senate. They will have delivered a grievous blow to our system of checks and balances, stained America's reputation around the world, and allowed an obscenity to disfigure the American system of law and justice. Far worse than a misguided zealot is the moral coward who says nothing and allows that zealotry to do real harm.

Amen. As much as I am dismayed by this Administration's agenda/tactics I am completely taken aback by the lack of response from the Democratic party. When did it become like this? I'm a young law student and can't remember a time when politicians took a stand for something important - something other than getting re-elected.

Your complaints highlight the double bind all of our elected officials are in: Either they are denounced as soft and weak by their opponents for not marching lock-step behind the administration's "war" on terror, or they are called soft and weak by everyone else for going along with the majority party. Such complaints from those of us who oppose PNAC and the national surveillance state do ourselves no great service by buying into this double bind. Better that we look for counter examples, in both parties. Better that we help make the case, build the foundation from which opponents of this administration's fast march to fascism can fight. The main source of this administration's momentum is its brilliantly executed war meme. That is the Gordian knot we must cut. Anything less than a full frontal assault at the root source of the double-bind serves it; any discussion of the various bait issues tacitly accepts and reinforces the underlying fallacy that our rights are somehow suddenly alienable because we are "at war".

There can be no legitimizing the "war" on terror; we have let bad rhetoric be elevated into worse legislation, disastrous policy, and a damning zeitgeist. And our representatives, majority and minority, are only that, representatives. It falls to the teachers and preachers and other molders of thought to provide those representatives the tools to see through to the deeper issue and fight the right fight rather than tightening their ideological shackles by vain struggle which accepts the war meme. Take away the war meme and the rest of the administration's unconscionable plans are built on sand. If you don't do it, who will?

A question: the latest draft I have is the one you posted here on 9/26. In it, the habeas-stripping provision applies only to alien enemy combatants (p. 82). Is there a later draft in which all enemy combatants are stripped of habeas rights?

(Not that the bill isn't appalling on any number of other grounds; just wanted to be clear on this one.)

I disagree with the analysis presented in this blog. Sure, I think the torture legislation is absolutely abhorrent (especially the habeus corpus provision). This legislation is likely to be struck down AGAIN by the Supreme Court:

"We believe that this legislation is as unconstitutional as the previous attempts by the administration to abolish habeas corpus, and that, as with previous attempts, it will eventually be overturned by the Supreme Court." (http://www.salon.com/opinion/feature/2006/09/26/habeas/index.html)

That being said, I also think we need to take the bigger picture into account. Sure, the Dems are backing off this issue because they don't want to look soft on terror. Can you blame them though? Weigh the possibilities here...cost/benefit analysis:

---Dems block the legislation (that would have been overturned anyway by SCOTUS). The GOP calls them "soft on terror" and they loose mid-term elections. We have two more years of a GOP-run congress with unbridled worship of the uber-executive (not to mention all of the other nasty legislation they will pass). The GOP may win the next prez election too, because the Dems are so "soft on terror"...

---Dems do not block the legislation. It is overturned by SCOTUS in a year or so. Dems win mid-term elections. Dems start all sorts of investigations with subpoenas of everything from the Iraq war to violations of FISA, etc. Dems impeach Bush. Dems win the next presidential election. Dems correct some of the nasty legislation passed by the GOP in the last 12 years.

Let us not forget that John Paul Stevens is 86 years old. We have four justices on the Supreme Court (Scalia, Thomas, Roberts, Alito) that advocate unbridled executive power (the "unitary executive").

If JPS retires/dies, and is replaced by a Bush-appointed, GOP-stamped 5th justice, leaning very far to the right. Dem-controlled Senate could prevent that.

That is the "big picture" we ALL need to be thinking about. Supreme Court justices are around for 30+ years nowdays. 30 years of a far-right Court is a very terrifying thought (Roe v. Wade, unlimited executive power, elimination of FDA, EPA, Clean Air/Water acts, etc.)

"---Dems do not block the legislation. It is overturned by SCOTUS in a year or so. Dems win mid-term elections. (...)"

With respect, I'm afraid that's a non sequitur. Not blocking this legislation does not warrant winning mid-term elections.

Says who? History. Look at Kerry, who thought he could support the war in Iraq and, simultaneously, be critical of the Administration's policies in this area. Rove and his right-wing noise machine are way too smart and resourceful to let a wishy-washy rival escape alive. And that was two years ago, when half of the money/lives hadn't been wasted and more than half of the evidence confirming Bush Co.'s lies hadn't been made public.

But, in any case, I appreciate you introducing this stategic (beyond legal or moral) angle into the debate. In my humble opinion, Dems should take advantage of this blatantly anti-democratic piece of legislation and oppose it, while presenting the nation with an alternative to:

Sorry, esoteric, but Democratic control of the Senate isn't going to stop people like Alito being approved. In fact, allowing the Democrats to cast "safe" votes out of fear of being called weak is precisely why the Alito filibuster failed, and why Alito would have been confirmed even in a Democratic controlled Senate.

To stop the detioration of the courts requires either (a) Democratic control of the White House for the 16-20 years, or (b) a fundamental change in our political system.

Neither is likely to happen. Kiss your rights, and the Constitution, good bye. The president isn't going to preseve them. The congress isn't going to preserve them. The last bastion of the defense of the Constitution is going to fall. And so we get to watch a long descent into the tyranny of a police state. The unwillingness of Democrats to stand up on the torture issue is both cause and evidence of the descent and its inevitability.

Angry as I am about this legislation, I don't want to fall into the trap of defeatism. I fervently hope there are Democrats who will oppose this bill and oppose it eloquently. The solution, then, is to reward those who do and replace those who don't.

This is going to be a long struggle. It may take years for the prosecutions to begin and justice meted out to the torturers. But only if we make it happen.

It's no doubt a thin hope, but can't a single Senator (say Feingold) run out the clock at this point by using a hold (i.e. withholding consent where unanimous consent is required to bring the bill to the floor). The Senator could very rightly argue s/he needs time to study the language in the bill and to understand for instance what "interrogation techniques" are or are not allowed under it.People often say that holds are based on Senate tradition (as opposed to rules) and therefore Frist could bulldoze any hold. I'm not so sure. I think the part that is tradition is that the holds may be secret. However the possibility of a single Senator holding up the bill is grounded in the Standing Rules of the Senate.

Here are the details fromhttp://en.wikipedia.org/wiki/Secret_hold

Sections 2 and 3 of Rule VII (Morning Business) of the Standing Rules of the Senate outline the procedure for bringing motions to the floor of the Senate. Under these rules, "no motion to proceed to the consideration of any bill...shall be entertained...unless by unanimous consent". In practice, this means that a Senator may privately provide notice to their party leadership of their intent to object to a motion. At that point, the motion can not proceed because unanimous consent has not been reached, even though the Senator has not publicly announced their intent to object. This allows a Senator to remain anonymous while preventing the motion to go forward.

(I also posted this comment at Glenn Greenwald's Unclaimed Territory.)

They are not going to hand the Republicans a cudgel to beat them with until november.

They may have a stealth strategy to stop this or roll it back at a later date... I sure hope so.

I blame the american people for being stupid enough to beleive republicans in the last three elections... it's their fault that the Dems can't stand for principle...if they do, they'll lose more seats, which they can hardly afford.

What I don't understand about the Democrats' position is that the polls show that a majority Americans are against torture. To whom, exactly, are the Democrats pandering at this point?

Aside from the moral implications (which are heavy indeed), this seems like a poor strategy. They are being suckered by the Republicans and are clueless that it's happening.

I also agree with humblelawstudent's assessment of some of the Dems. The Dems are hardly liberal, and I'm sure you could find more than one authoritarian amongst their ranks. I wouldn't be surprised if a Dianne Feinstein-type would support this bill, with full knowledge of what is in it.

"Neither is likely to happen. Kiss your rights, and the Constitution, good bye. The president isn't going to preseve them. The congress isn't going to preserve them. The last bastion of the defense of the Constitution is going to fall."

I refuse to accept this until it happens. I believe the Court/constitution can still be saved. If the Court descends into far-right madness, then I will part my ways with the USA. I wouldn't want to stick around to see how nasty it gets.

"but can't a single Senator (say Feingold) run out the clock at this point by using a hold (i.e. withholding consent where unanimous consent is required to bring the bill to the floor)."

I like this idea. Let a single senator hold up the legislation until Congress recesses until after the election (the one senator would take the blunt of the "soft on terror" criticism, at least until after the election. Please Mr. Feingold...)

Free thinker writes: "I blame the american people for being stupid enough to beleive republicans in the last three elections... it's their fault that the Dems can't stand for principle." True in part. But it is also the Democrats' fault that the people are stupid. A leader educates the people. The Democrats teach them why Bush is making them less safe.

How many times do we have to hear that the Dems should duck and cover in order to avoid being called "soft" on terrorism or abortion or activist judges, etc.? They should play along with everything to secure victory at some imaginary point down the road that doesn't exist.

"Don't block Alito! They'll call us names!" "Don't vote against the war in Iraq! We'll lose the next election!" When will these idiots wake up? You lose elections BECAUSE YOU HAVE NO SPINES. You will be attacked by the right wing no matter what you do -- have you figured that out yet? It's as if the Dems calculate every move based on how it will play to the Fox news crowd. Here's a hint: you can't win those people over. Period. So stop trying. And Howard Dean is out there talking about the "war on American families" in the Wall Street Journal! Did he not notice that Kerry lost with this moronic strategy? They lose because they deserve to lose.

100% correct. this is precisely the time (pre-election) and issue (torture) when a bush/rove-esque "with us or against us" would be appropriate, popular with the majority of the people out there, and make the dems look aggressive and with a clear message and make the republicans look petty and legalistic, not to mention totally out of synch with our national values.

One other point: your blog would get a lot more comments if you didn't require commenters to use a blogger account. I've wanted to leave comments many times on this blog, but didn't because I didn't want to go through the hassle of signing up for a blogger account. I hope you will reconsider your set-up.

One would think a Law Professor would be smart enough to recognize that the Democrats do indeed know what is in the McCain "compromise" and its amendments, and that the Democrats are actually in favor of the legislation because it helps them stay in power as one side or the other of the same coin, the coin of totalitarian power under different names, the coin of non-democratic government, the coin of WHERE IS YOUR BRAIN, JACK BALKIN?

It's as if the Dems calculate every move based on how it will play to the Fox news crowd.

Well...sort of. I'm as disgusted with the Democrats as anyone, but I'll give them this: the rightwing echo chamber is a savage, well-oiled machine, and getting sucked into its maw can't be much fun (unless you possess the brains and acumen of a Bill Clinton; few do). Let's be clear: Sean Hannity lies to his devotees, as do Limbaugh, Coulter, et al. Even MSNBC and CNN know that vitriole sells; intellectual honesty is for chumps.

How to fight such a thing? What to do when every good deed, every noble impulse, is snatched from your hands, shamelessly distorted, and then used to pummel you? In my perfect world, there will be a special circle of Hell reserved for those who dump poison into the well of public discourse; it's such a scummy, odious thing to do.

I refuse to accept this until it happens. I believe the Court/constitution can still be saved. If the Court descends into far-right madness, then I will part my ways with the USA. I wouldn't want to stick around to see how nasty it gets.

Holy hullaballoo. What planet do you live on, Esoteric? Looks to me like Planet Naivete.

The Court descended into far-right madness when it decided the opinion in Bush v Gore regarding the 2000 election, and when it countenanced Tony Scalia's staying on the court in matters deciding issues related to Bush/Cheney AFTER Dick Cheney hosted Sweet Tony the Turncoat at a duck hunting lodge.

You probably think Bill Clinton was an honorable man, and that Jimmy Carter was a spineless wimp too.

Rule VII governs only the Senate's "Morning Business," which, though it doesn't always take place in the morning, is a specific period during which routine housekeeping is taken care of. After the conclusion of morning business, a motion to proceed is perfectly in order.

Of course, such motions are debatable, and therefore subject to filibuster. But that's when you have to come out from behind your "hold" and actually conduct that filibuster if you want to keep a bill off the floor in the face of a motion to proceed.

the rightwing echo chamber is a savage, well-oiled machine, and getting sucked into its maw can't be much fun

This is the fear that permeates the Democratic party -- and everyone can smell it. You don't win by being mealy-mouthed and afraid that Hannity and Rush are going to distort what you say. This is really my point: they are going to distort what they say and cudgel them with it no matter what they say or do. Therefore, stop trying to tailor what you say and do based on the fear that it will be distorted and used against you.

30% of the country is in some sort of right-wing religious cult called the Republican party. Bush could peel off his head and reveal that he is Sleestack on live TV and they wouldn't bat an eyelash. So forget them.

Ask yourself what would happen if the situation were reversed. The Republicans would filibuster every fucking bill on the planet. They would spend every waking hour trying to get President Hillary impeached. End of story. That is why they win. Punching bags don't win elections.

Ok, it's hard to have the zeal of a cult when you aren't actually in a cult, but you at least have to get up off of the mat.

Anyway, who cares if the Dems take the House back? They will be too afraid to do anything. Suddenly we will hear that they shouldn't rock the boat because 2008 is just around the corner. It's the same thing over and over and over.

Therefore, stop trying to tailor what you say and do based on the fear that it will be distorted and used against you.

I'm not disagreeing, I'm asking: how do they do that?

30% of the country is in some sort of right-wing religious cult called the Republican party.

Very true, and they're a lost cause. Then, there's another 30% or so who slumber through life, lazily casting their vote based on whatever talking points penetrate their noggins. I know these folks; I work with them. Reaching them is where we succeed or fail. Again: how to do that?

They go on national TV and say, "This country will legalize torture over my dead body. And anyone who tries to legalize it should be tried for war crimes. Anyone who supports torture doesn't understand what this country is all about. And if you don't like it, move to North Korea or Cuba."

For starters? Then filibuster if they have to. It's not that hard.

Do they not understand that Bush is unpopular? That the wrong track numbers are through the roof? This tip-toeing around these issues boggles the mind.

They have had opportunities like the Arar report DROPPED IN THEIR LAPS during this fiasco and have refused to get a spine or even get a strategy. The Harper's article, the German prosecutor's statements in el-Masri---- if they are this inept and feckless, they do deserve to lose.

Anyone who cannot fashion a credible and loud argument against making America a state sponsor of torture, torture of innocent people, torture of our own citizens, torture of children - how thoroughly contemptible.

I think a Dem. Senate will matter if Stevens retires. But, there are many other things for which it will matter too. A firm "mandate" to Republicans in '06 would be a travesty overall. Anyway, a betting man says the Dems will lose the Senate ... they need a near perfect storm to win it.

The House is different. They have a shot. Many over there did lash against the bill, something noted on liberal activist leaning blogs as well. They have spoken out repeatedly on various issues, but since the place is run as a plantation (see, e.g., "Broken Branch"), they come out with little.

Most Dem House members did vote against the bill. They deserve to win in '06, and should not be punished for Senate timidity.

Glenn Greenwald underlines the point that House Dems served the country pretty well on this issue. The exceptions are telling:

The House voted today to pass the President's interrogation and detention bill. The roll call vote is here. Democrats voted against the bill by a vote of 219-34. Republicans voted in favor of the bill by a vote of 160-7. Of the 34 Democrats voting in favor of the bill, two are currently in close races for the Senate: Rep. Harold Ford in Tennessee and Sherwood Brown in Ohio.

Rep. Brown, a generally liberal leaning sort (including on free trade), is a particularly troubling case. It underlines, however, how the Senate appears to be different on this issue. More "reasonable" in a Lieberman sort of way.

I find the Dem leadership often very frustrating, but I think the real problem here is not that Dems are spineless but that they are not monolithic. 38 Dems willing to filibuster would not be enough, even if joined by Chafee and as long as there are red-state Dem Senators (which there must be for Dems to control the Senate), there will often be a problem with filibustering if there are only 45 Dem senators. If Dems controlled the Senate right now, this law would not pass in this form. At least 3 Repubs are apparently joining with Levin on habeas which means that if there were 50 Dems that would be changed. In a democracy, you must win elections. The most likely outcome of the current election it seems to me is a 50-50 Senate which would, of course, be organized by the Repubs with the help of the VP, but a 50-50 Senate will be viewed as a Dem victory and make it much easier to stop a bad Supreme nominee, with real pressure being put on the Mainers and Specter in that event, and further 50 Dem senators are much more likely to have 40 willing to filibuster. Dem Senators are speaking out against this bill and House Dems voted overwhelmingly against it. Unfortunately, the media has somewhat lost interest now that the McCain part is over. Which leads me to another pet peeve, which is the idea of the objective non-partisan media. I think the 19th century had it right with partisan media. How different it might be if people could actually tune in every night to the Democratic Nightly News with Walter Cronkite (oops, its getting late, i must have dozed off into a dream state).

It's truly sad that Alexander Hamilton had more wisdom at age 25 than at least some of the Dems in the Senate. From a letter of September 3, 1780:

"The manner in which a thing is done has more influence than is commonly imagined. Men are governed by opinion; this opinion is as much influenced by appearances as by realities; if a Government appears to be confident of its own powers, it is the surest way to inspire the same confidence in others; if it is diffident, it may be certain, there will be a still greater diffidence in others, and that its authority will not only be distrusted, controverted, but contemned."

Dems need to stand up for our principles now that the Republicans are standing down for them.

Any of you notice that your repeated meme here, over and over and over again, is to educate us dumb voters so that we'll be smart enough to understand why you're so appalled?

It's evidently not occurred to the Democratic Party -- or at least the ones posting here -- that the MAJORITY of voters have already rejected your "educational superiority" not just once but a couple of times. My guess is that you-all will be rejected again on November 8, and for a lot of the same reasons.

You really need to wrap your over-educated and bulging brains around the fact that we are not impressed by your education. We *are* impressed by what we can touch and see and hear and taste ... like two skyscrapers crumbling and bodies plummeting downwards through the air to splat like over-ripe tomatoes on the pavement below.

Until you can come up with a counter-balance to those images, your rants about the need to "educate" us to the importance of treating terrorists with the proper amount of empathy and human rights is going to keep on being rejected, and all your efforts wasted.

If terrorists have their habeas corpus taken away from them ... good! And if we've been able to slaughter 4,000 terrorists in Iraq (not to mention however many have met their Allah in Afghanistan) then that has been money well spent on warlike activities.

If I recall when Clinton appointed his Supreme Court nominees there was no fight.

The Republicans, including Gingrich, said, he won the Presidential election he gets to decide the Supreme Court.

Yet, Reagan, Bush Sr, and Bush Jr have to fight tooth and nail to get their people in.

And yet it is the Republicans who are stong willed and the Democrats who are wishy washy. Please.

America as a whole does not want socialism. America as a whole does not want to treat people out of uniform(and therefore not protected by the Geneva Convention that America signed), shooting at their soldiers given the same rights as American citizens.

Think about Lieberman, think hard. He is your test case. A true liberal who believes in the War in Iraq. If he does not lose in a Liberal state like Connecticut, do you really want the Democrats to look like they do not believe in this war?

Do you? Because that is a recipe for disaster. Hell as a conservative I wish, I wish all Democrats would come out strongly in support of the DNC opinions.

That would guarantee a butt-whipping you have not seen since Modale was slaughtered by that "War-Monger", "stupid", and "inept" Reagan.

I do not believe any of those things, but they were said of Reagan and all he did was win elections, bring America out of its doldrums and kill the Soviet Union.

Not bad for being "stupid".

Yes get the Democrats to be strong in their Commitments to all things America does not like. I need a good laugh.

Another conservative point of view, along the lines of what NahnCee said....get your heads out of your overeducated patoots and stop your condesending attitude toward the people you are trying to get on your side.

Speaking from personal experience, I tune out anybody I think is talking down to me as a voter, and the Dhims are great at that....example: John Kerry tarted up as a hunter?? Puleeze, that was as sleazy as they come.

Also, quit denigrating our boys in uniform. I remember 9/11 and the impact it had on me as a voter, and I'm darn sure not going to vote for the pansy party of weenies who want to cut and run from Iraq, and I'm tired of being told I'm stupid for believing that ISLAM is a huge problem for us. Just making "nice" with these savages is not going to work, nor is ignoring the problem and hoping they'll go away.

Also, I don't want to be a socialist. Socialism DOESN'T WORK. What part of that don't you understand? I'm grown, have been for awhile, and unlike the food nazis at work in NYC (more well-meaning libs, no doubt) I DON'T NEED A NANNY. I don't want the government getting into my life that far. If I want to eat french fries, by God, I'll EAT french fries and if I die of it, oh well. I'm a grown-up and I can do that. Ditto for smoking, drinking, and anything else I choose to do as an adult.

James Carville is right. Democrats need to find their spines, but the problem is THEY DON'T HAVE ANY. Evidently bleeding hearts weakens the spine, not to mention that the Dhims have so many factions that they CAN'T come up with a cohesive strategy that brings everybody under the tent, which is why you're on your way into the trash bin of history.

This is NOT JFK's Democratic party and if he was still alive, he'd be appalled at all of you. You deserve to lose, and you will.

"Too big for information, is equal to too small for Knowledge, Too big to learn, is equal to too small to understand. When a man says, "I am beyond that!', it usually means that it is beyond him, not because it must be beyond him, but because if he were beyond it, he would not say so." - Idries Shah

I am a registered Democrat (because of closed primaries in a D area) but no party loyalist by any means.

Democrats don't lose elections because voters are dumb and the Supreme Court won't let candidates cherry-pick recounts. (Remember, they didn't tell FL not to have recounts. They said if you're going to do it, you have to recount the whole state. It was the only fair thing to do.)

Democrats lose elections because they have no ideas; they have bad ideas; or they have ideas that are unpopular and they know it so they try to hide it but the electorate knows better.

Want a spine? Be who you are. Run on your ideas. Don't insult the voters.

Then when Dems lose, they will know it's about their IDEAS losing. The party has no chance of saving itself until it has a rendezvous with reality.

No Dems for national office in 2006! I'm just not for investigations and impeachments during a time of war. The D spin machine has really lost its mind and its grip on reality. It's ossified and Kossified. Whiny teenagers shouldn't be allowed to run the country.

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